ORDER
SHEET
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Constt: Petition No.D- 3868 of 2015
DATE ORDER WITH SIGNATURE OF
HON’BLE JUDGE
1-
For Katcha
Peshi.
2-
For hearing of CMA.No.10770/2015
(Stay)
06th.
November, 2015.
M/s
Shabbir Ali Bozdar and
Muhammad Sulleman Kalhoro,
Advocates along with petitioner.
M/s
Ghulam Murtaza Korai & Saqib Kalhoro, Advocates for
Respondent No.5.
Mr. Zulfiqar
Ali Sangi, Asstt: A.G.
Through
instant petition, the petitioner has impugned the order passed by Appellate
Authority in Election Appeal No.147 of 2015, whereby vide order dated
09.10.2015, the nomination paper of the petitioner Muhammad Ismail, has been
cancelled on the ground that an F.I.R bearing Crime No.12 of 2008 U/s 496-A,
Protection of Women Act, 2006 is registered at police station, Wagan, District Shahdadkot @ Kamber against the petitioner, his brothers and father for
abduction of Mst. Shazia,
whereas, proceedings U/s 87 & 88, Cr.P.C have
been initiated against the petitioner and other accused persons. It has been
stated by learned Counsel for the petitioner that petitioner has no criminal
history whatsoever and has never been convicted in any other criminal case nor
he is defaulter of any department in respect of utility charges, hence filed
his nomination form for contesting the forthcoming elections after complying with all the codal formalities, and in view of the false allegations
pursuant to aforesaid F.I.R, the nomination paper of the petitioner has been
cancelled. Per learned Counsel, even otherwise, unless a person is convicted in
a crime, he cannot be disqualified as per the election law.
Notices
were issued, pursuant to which M/s Ghulam Murtaza Korai & Saqib Kalhoro, Advocates filed
their joint Vakalatnama on behalf of Respondent No.5
along with objections and submit that since petitioner is required in the
aforesaid crime, whereas proceedings U/s 87 & 88, Cr.P.C
have been initiated against him and is fugitive from law, hence is not entitled
to contest elections.
Learned
Counsel for petitioner has produced Mst. Shazia D/o Sikander Ali Tunio W/o Muhammad Ishaque, who
is present in Court and submits that the aforesaid F.I.R is patently false and
frivolous, she has not been abducted by any one nor the petitioner or any one
nominated therein, whereas, she being sui-juris has
contracted marriage out of her own freewill without any pressure or coercion
from any corner and is living with her husband namely Muhammad Ishaque since 2008 and out of said wedlock there are three
children. It has been further stated that they do not have any knowledge about
registration of such F.I.R nor received any summons from the competent Court of
jurisdiction, however, recently they came to know about registration of said case,
the petitioner and other accused persons have approached the learned trial
Court and obtained bail and have joined the trial, whereas, statement of Mst. Shahzia has also been
recorded by learned
Sessions Judge, Shahdadkot @ Kamber.
Learned Counsel further submits that since the very registration of F.I.R in
view of the statement of Mst. Shahzia
stands falsified, therefore, any further proceedings in this regard are equally
illegal, nullity in the eyes of law, hence the petitioner has no concern with
the said allegations, cannot be held disentitled to contest the elections.
Learned
Asstt: A.G, in view of aforesaid statement of Mst Shazia
present in Court, does not support the impugned order.
We
have heard the learned Counsel for the
parties and learned Asstt: A.G and perused the
record, which reflects that petitioner Muhammad Ismail having no criminal
history has filed his nomination form after complying with all the codal formalities, whereas, there was no deficiency pointed
out before the Returning Officer as well as appellate authority except
registration of aforesaid F.I.R about the alleged abduction of Mst.Shazia, who is present in Court today and categorically
denied such allegations. Furthermore, the petitioner as well as other nominated
accused persons in the aforesaid F.I.R, have also
joined the trial. We do not find any error or illegality in the order of
Returning Officer. Accordingly, instant petition is allowed and the impugned
order dated 09.10.2015 passed by the Appellate Authority/District &
Sessions Judge, Naushahro Feroze,
is set-aside. The Returning Officer is directed to accept the nomination paper
of the petitioner and issue form VIII, accordingly.
JUDGE
JUDGE
A.R.BROHI